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EXHIBIT 3.2
AMENDED AND RESTATED
BY-LAWS
OF
BEGA, INC.
ARTICLE I
OFFICES
SECTION 1. REGISTERED OFFICE. The registered office shall be
established and maintained at the office of The Corporation Trust Company, in
the City of Wilmington, in the County of New Castle, in the State of Delaware,
and said corporation shall be the registered agent of this corporation in charge
thereof.
SECTION 2. OTHER OFFICES. The corporation may have other offices,
either within or without the State of Delaware, at such place or places as the
Board of Directors may from time to time appoint or the business of the
corporation may require.
ARTICLE II
MEETING OF STOCKHOLDERS
SECTION 1. ANNUAL MEETINGS. Annual meetings of stockholders for
the election of directors and for such other business as may be stated in the
notice of the meeting, shall be held at such place, either within or without the
State of Delaware, and at such time and date as the Board of Directors, by
resolution, shall determine and as set forth in the notice of the meeting. At
each annual meeting, the stockholders entitled to vote shall elect a Board of
Directors and they may transact such other corporate business as shall be stated
in the notice of the meeting.
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SECTION 2. OTHER MEETINGS. Meetings of stockholders for any
purpose other than the election of directors may be held at such time and place,
within or without the State of Delaware, as shall be stated in the notice of
meeting.
SECTION 3. VOTING. Each stockholder entitled to vote in
accordance with the terms of the Amended and Restated Certificate of
Incorporation of the corporation (the "Certificate of Incorporation") and in
accordance with the provisions of these By-Laws shall be entitled to one vote,
in person or by proxy, for each share of stock entitled to vote held by such
stockholder, but no proxy shall be voted after three years from its date unless
such proxy provides for a longer period. Upon the demand of any stockholder, the
vote for directors and the vote upon any question before the meeting, shall be
by ballot. All elections for directors shall be decided by plurality vote; all
questions shall be decided by majority vote except as otherwise provided by the
Certificate of Incorporation or the laws of the State of Delaware.
A complete list of the stockholders entitled to vote at the
ensuing election, arranged in alphabetical order, with the address of each, and
the number of shares held by each, shall be open to the examination of any
stockholder, for any purpose germane to the meeting, during ordinary business
hours, for a period of at least ten days prior to the meeting, either at a place
within the city where the meeting is to be held, which place shall be specified
in the notice of the meeting, or, if not so specified, at the place where the
meeting is to be held. The list shall also be produced and kept at the meeting
and place of the meeting during the whole time thereof, and may be inspected by
any stockholder who is present.
SECTION 4. QUORUM. Except as otherwise required by law, by the
Certificate of Incorporation or by these By-Laws, the presence, in person or by
proxy, of stockholders holding a majority of the stock of the corporation
entitled to vote shall constitute a
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quorum at all meetings of the stockholders. In case a quorum shall not be
present at any meeting, a majority in interest of the stockholders entitled to
vote thereat, present in person or by proxy, shall have the power to adjourn the
meeting from time to time, without notice other than announcement at the
meeting, until the requisite amount of stock entitled to vote shall be present.
At any such adjourned meeting at which the requisite amount of stock entitled to
vote shall be represented, any business may be transacted which might have been
transacted at the meeting as originally noticed; but only those stockholders
entitled to vote at the meeting as originally noticed shall be entitled to vote
at any adjournment or adjournments thereof.
SECTION 5. SPECIAL MEETINGS. Special meetings of the stockholders
for any purpose or purposes may be called by the President or Secretary, or by
resolution of the directors.
SECTION 6. NOTICE OF MEETINGS. Written notice, stating the place,
date and time of the meeting, and the general nature of the business to be
considered, shall be given to each stockholder entitled to vote thereat at his
address as it appears on the records of the corporation, not less than ten nor
more than sixty days before the date of the meeting. No business other than that
stated in the notice shall be transacted at any meeting without the unanimous
consent of all the stockholders entitled to vote thereat.
SECTION 7. ACTION WITHOUT MEETING. Unless otherwise provided by
the Certificate of Incorporation, any action required to be taken at any annual
or special meeting of stockholders, or any action which may be taken at any
annual or special meeting, may be taken without a meeting, without prior notice
and without a vote, if a consent in writing, setting forth the action so taken,
shall be signed by the holders of outstanding stock having not less than the
minimum number of votes that would be necessary to authorize or take such action
at a
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meeting at which all shares entitled to vote thereon were present and voted.
Prompt notice of the taking of the corporate action without a meeting by less
than unanimous written consent shall be given as required by applicable law.
ARTICLE III
DIRECTORS
SECTION 1. NUMBER AND TERM. The number of directors shall be five
(5). The directors shall be elected at the annual meeting of the stockholders
and each director shall be elected to serve until his successor shall be elected
and shall qualify. The directors need not be stockholders.
SECTION 2. RESIGNATIONS. Any director, member of a committee or
other officer may resign at any time. Such resignation shall be made in writing,
and shall take effect at the time specified therein, and if no time be
specified, at the time of its receipt by the President or Secretary. The
acceptance of a resignation shall not be necessary to make it effective.
SECTION 3. VACANCIES. If the office of any director, member of a
committee or other officer becomes vacant, the remaining directors in office,
though less than a quorum, by a majority vote, may appoint any qualified person
to fill such vacancy, who shall hold office for the unexpired term and until his
successor shall be duly chosen.
SECTION 4. REMOVAL. Except as hereinafter provided, any director
or directors may be removed either for or without cause at any time by the
affirmative vote of the holders of a majority of all the shares of stock
outstanding and entitled to vote, at a special meeting of the stockholders
called for the purpose and the vacancies thus created may be filled,
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at the meeting held for the purpose of removal, by the affirmative vote of a
majority in interest of the stockholders entitled to vote.
Unless the Certificate of Incorporation otherwise provides,
stockholders may effect removal of a director who is a member of a classified
Board of Directors only for cause. If the Certificate of Incorporation provides
for cumulative voting and if less than the entire board is to be removed, no
director may be removed without cause if the votes cast against his removal
would be sufficient to elect him if then cumulatively voted at an election of
the entire board of directors, or if there be classes of directors, at an
election of the class of directors of which he is a part.
If the holders of any class of series are entitled to elect one
or more directors by the provisions of the Certificate of Incorporation, these
provisions shall apply, in respect of the removal without cause of a director or
directors so elected, to the vote of the holders of the outstanding shares of
that class or series and not to the vote of the outstanding shares as a whole.
SECTION 5. INCREASE OF NUMBER. The number of directors may be
increased by amendment of these By-Laws by the affirmative vote of a majority of
the directors or by the affirmative vote of a majority interest of the
stockholders, at the annual meeting or at a special meeting called for that
purpose, and by like vote the additional directors may be chosen at such meeting
to hold office until the next annual election and until their successors are
elected and qualify.
SECTION 6. POWERS. The Board of Directors shall exercise all of
the powers of the corporation except such as are by law, or by the Certificate
of Incorporation or by these By-Laws conferred upon or reserved to the
stockholders.
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SECTION 7. COMMITTEES. The Board of Directors may designate one
or more committees, each committee to consist of one or more directors of the
corporation. The Board of Directors may designate one or more directors as
alternate members of any committee, who may replace any absent or disqualified
member at any meeting of the committee. In the absence or disqualification of
any member of such committee or committees, the member or members thereof
present at any meeting and not disqualified from voting, whether or not he or
they constitute a quorum, may unanimously appoint another member of the Board of
Directors to act at the meeting in the place of any such absent or disqualified
member.
Any such committee, to the extent provided in the resolution of
the Board of Directors, or in these By-Laws, but subject to applicable law,
shall have and may exercise all the powers and authority of the Board of
Directors in the management of the business and affairs of the corporation, and
may authorize the seal of the corporation to be affixed to all papers which may
require it; but no such committee shall have the power or authority in reference
to amending the Certificate of Incorporation, adopting an agreement of merger or
consolidation, recommending to the stockholders the sale, lease or exchange of
all or substantially all of the corporation's property and assets, recommending
to the stockholders a dissolution of the corporation or a revocation of a
dissolution, or amending the By-Laws of the corporation; and, unless the
resolution, these By-Laws, or the Certificate of Incorporation expressly so
provide, no such committee shall have the power or authority to declare a
dividend or to authorize the issuance of stock.
SECTION 8. MEETINGS. The newly elected directors may hold their
first meeting for the purpose of organization and the transaction of business,
if a quorum be present,
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immediately after the annual meeting of the stockholders; or the time and place
of such meeting may be fixed by consent in writing of all the directors.
Regular meetings of the directors may be held without notice at
such places and times as shall be determined from time to time by resolution of
the directors.
Special meetings of the Board of Directors may be called by the
President or by the Secretary on the written request of any two directors on at
least two day's notice to each director and shall be held at such place or
places as may be determined by the directors, or shall be stated in the call of
the meeting.
Unless otherwise restricted by the Certificate of Incorporation
or by these By-Laws, members of the Board of Directors, or any committee
designated by the Board of Directors, may participate in a meeting of the Board
of Directors, or any committee, by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and such participation in a meeting shall
constitute presence in person at the meeting.
SECTION 9. QUORUM. A majority of the directors shall constitute a
quorum for the transaction of business. If at any meeting of the Board of
Directors there shall be less than a quorum present, a majority of those present
may adjourn the meeting from time to time until a quorum is obtained, and no
further notice thereof need be given other than by announcement at the meeting
which shall be so adjourned.
SECTION 10. COMPENSATION. Directors shall not receive any stated
salary for their services as directors or as members of committees, but by
resolution of the Board of Directors a fixed fee and expenses of attendance may
be allowed for attendance at each meeting. Nothing herein contained shall be
construed to preclude any director from serving the
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corporation in any other capacity as an officer, agent or otherwise, and
receiving compensation therefor.
SECTION 11. ACTION WITHOUT MEETING. Any action required or
permitted to be taken at any meeting of the Board of Directors, or of any
committee thereof, may be taken without a meeting, if consent thereto is signed
by all members of the Board of Directors, or of such committee as the case may
be, in accordance with applicable law, and such written consent is filed with
the minutes of proceedings of the Board of Directors or committee.
ARTICLE IV
OFFICERS
SECTION 1. OFFICERS. The officers of the corporation shall be a
President, Secretary and Controller, each of whom shall be elected by the Board
of Directors and who shall hold office until their successors are elected and
qualified. In addition, the Board of Directors may elect a Chairman, a Chief
Executive Officer, Chief Operating Officer and one or more Vice-Presidents and
such Assistant Secretaries and Assistant Controllers as they may deem proper.
None of the officers of the corporation need be directors. The officers shall be
elected at the first meeting of the Board of Directors after each annual
meeting. More than two offices may be held by the same person.
SECTION 2. OTHER OFFICERS AND AGENTS. The Board of Directors may
appoint such other officers and agents as it may deem advisable, who shall hold
their offices for such terms and shall exercise such powers and perform such
duties as shall be determined from time to time by the Board of Directors.
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SECTION 3. CHAIRMAN. The Chairman of the Board of Directors, if
one be elected, shall preside at all meetings of the Board of Directors and he
shall have and perform such other duties as from time to time may be assigned to
him by the Board of Directors.
SECTION 4. PRESIDENT. The President shall be the chief executive
officer of the corporation and shall have the general powers and duties of
supervision and management usually vested in the office of President of a
corporation. He shall preside at all meetings of the stockholders if present
thereat, and in the absence or nonelection of the Chairman of the Board of
Directors, at all meetings of the Board of Directors, and shall have general
supervision, direction and control of the business of the corporation. Except as
the Board of Directors shall authorize the execution thereof in some other
manner, he shall execute bonds, mortgages and other contracts in behalf of the
corporation, and shall cause the seal to be affixed to any instrument requiring
it and when so affixed the seal shall be attested by the signature of the
Secretary or the Controller or an Assistant Secretary or an Assistant
Controller.
SECTION 5. VICE-PRESIDENT. Each Vice-President shall have such
powers and shall perform such duties as shall be assigned to him by the
directors.
SECTION 6. CONTROLLER. The Controller shall have the custody of
the corporate funds and securities and shall keep full and accurate account of
receipts and disbursements in books belonging to the corporation. He shall
deposit all moneys and other valuables in the name and to the credit of the
corporation in such depositaries as may be designated by the Board of Directors.
The Controller shall disburse the funds of the corporation as may
be ordered by the Board of Directors, or the President, taking proper vouchers
for such disbursements. He shall render to the President and Board of Directors
at the regular meetings of the Board of Directors,
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or whenever they may request it, an account of all his transactions as
Controller and of the financial condition of the corporation. If required by the
Board of Directors, he shall give the corporation a bond for the faithful
discharge of his duties in such amount and with such surety as the board shall
prescribe.
SECTION 7. SECRETARY. The Secretary shall give, or cause to be
given, notice of all meetings of stockholders and directors, and all other
notices required by law or by these By-Laws, and in case of his absence or
refusal or neglect so to do, any such notice may be given by any person
thereunto directed by the President, or by the directors, or stockholders, upon
whose requisition the meeting is called as provided in these By-Laws. He shall
record all the proceedings of the meetings of the corporation and of the
directors in a book to be kept for that purpose, and shall perform such other
duties as may be assigned to him by the directors or the President. He shall
have the custody of the seal of the corporation and shall affix the same to all
instruments requiring it, when authorized by the directors or the President, and
attest the same.
SECTION 8. ASSISTANT CONTROLLERS AND ASSISTANT SECRETARIES.
Assistant Controllers and Assistant Secretaries, if any, shall be elected and
shall have such powers and shall perform such duties as shall be assigned to
them, respectively, by the directors.
ARTICLE V
MISCELLANEOUS
SECTION 1. CERTIFICATES OF STOCK. Certificate of stock, signed by
the Chairman or Vice Chairman of the Board of Directors, if they be elected,
President or Vice- President, and the Controller or an Assistant Controller, or
Secretary or an Assistant Secretary,
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shall be issued to each stockholder certifying the number of shares owned by him
in the corporation. Any of or all the signatures may be facsimiles.
SECTION 2. LOST CERTIFICATES. A new certificate of stock may be
issued in the place of any certificate theretofore issued by the corporation,
alleged to have been lost or destroyed, and the directors may, in their
discretion, require the owner of the lost or destroyed certificate, or his legal
representatives, to give the corporation a bond, in such sum as they may direct,
not exceeding double the value of the stock, to indemnify the corporation
against any claim that may be made against it on account of the alleged loss of
any such certificate, or the issuance of any such new certificate.
SECTION 3. TRANSFER OF SHARES. The shares of stock of the
corporation shall be transferable only upon its books by the holders thereof in
person or by their duly authorized attorneys or legal representatives, and upon
such transfer the old certificates shall be surrendered to the corporation by
the delivery thereof to the person in charge of the stock and transfer books and
ledgers, or to such other person as the directors may designate, by whom they
shall be cancelled, and new certificates shall thereupon be issued. A record
shall be made of each transfer and whenever a transfer shall be made for
collateral security, and not absolutely, it shall be so expressed in the entry
of the transfer.
SECTION 4. STOCKHOLDERS RECORD DATE. In order that the
corporation may determine the stockholders entitled to notice of or to vote at
any meeting of stockholders or any adjournment thereof, or to express consent to
corporate action in writing without a meeting, or entitled to receive payment of
any dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of stock or
for the purpose of any other lawful action, the Board of Directors may fix,
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in advance, a record date, which shall not be more than sixty nor less than ten
days before the date of such meeting, nor more than sixty days prior to any
other action. A determination of stockholders of record entitled to notice of or
to vote at a meeting of stockholders shall apply to any adjournment of the
meeting; provided, however, that the Board of Directors may fix a new record
date for the adjourned meeting.
SECTION 5. DIVIDENDS. Subject to the provisions of the
Certificate of Incorporation, the Board of Directors may, out of funds legally
available therefor at any regular or special meeting, declare dividends upon the
capital stock of the corporation as and when they deem expedient. Before
declaring any dividend there may be set apart out of any funds of the
corporation available for dividends, such sum or sums as the directors from time
to time in their discretion deem proper for working capital or as a reserve fund
to meet contingencies or for equalizing dividends or for such other purposes as
the directors shall deem conducive to the interests of the corporation.
SECTION 6. SEAL. The corporate seal shall be circular in form and
shall contain the name of the corporation, the year of its creation and the
words "CORPORATE SEAL DELAWARE". Said seal may be used by causing it or a
facsimile thereof to be impressed or affixed or reproduced or otherwise.
SECTION 7. FISCAL YEAR. The fiscal year of the corporation shall
be determined by resolution of the Board of Directors.
SECTION 8. CHECKS. All checks, drafts or other orders for the
payment of money, notes or other evidences of indebtedness issued in the name of
the corporation shall be signed by such officer or officers, agent or agents of
the corporation, and in such manner as shall be determined from time to time by
resolutions of the Board of Directors.
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SECTION 9. NOTICE AND WAIVER OF NOTICE. Whenever any notice is
required by these By-Laws to be given, personal notice is not meant unless
expressly so stated, and any notice so required shall be deemed to be sufficient
if given by depositing the same in the United States mail, postage prepaid,
addressed to the person entitled thereto at his address as it appears on the
records of the corporation, and such notice shall be deemed to have been given
on the day of such mailing. Stockholders not entitled to vote shall not be
entitled to receive notice of any meetings except as otherwise provided by
statute.
Whenever any notice whatever is required to be given under the
provisions of any law, or under the provisions of the Certificate of
Incorporation or these By-Laws, a waiver thereof in writing, signed by the
person or persons entitled to said notice, whether before or after the time
stated therein, shall be deemed equivalent thereto.
ARTICLE VI
INDEMNIFICATION
SECTION 1. INDEMNIFICATION: Any individual who was or is a party
or is threatened to be made a party to any threatened, pending, or completed
action, suit, or proceeding (a "Proceeding"), whether civil, criminal,
administrative, or investigative (whether or not by or in the right of the
corporation), by reason of the fact that such individual, or an individual of
whom such individual is the legal representative, is or was a director, officer,
incorporator, employee, or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, incorporator, employee,
partner, trustee, or agent of another corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise (an "Other Entity"), shall be
indemnified by the corporation to the full extent permitted by law against
expenses (including counsel fees and disbursements), judgments, fines (including
excise
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taxes assessed on an individual with respect to an employee benefit plan), and
amounts paid in settlement incurred by him or her in connection with such
Proceeding. Any other individual may be similarly indemnified in respect of
service to the corporation or to an Other Entity at the request of the
corporation to the extent the Board of Directors at any time specifies that any
such individual is entitled to the benefits of this Article VI.
SECTION 2. ADVANCEMENT OF EXPENSES. The corporation shall, from
time to time, reimburse or advance to any director or officer or such other
individual entitled to indemnification hereunder the funds necessary for payment
of expenses, including attorneys' fees and disbursements, incurred in connection
with any Proceeding, in advance of the final disposition of such Proceeding;
provided, however, that, if (and only if) required by the Delaware General
Corporation Law, such expenses incurred by or on behalf of any director or
officer or other individual may be paid in advance of the final disposition of a
Proceeding only upon receipt of the corporation of an undertaking, by or on
behalf of such director or officer (or other individual indemnified hereunder),
to repay any such amount so advanced if it shall ultimately be determined by
final judicial decision from which there is no further right of appeal that such
director, officer or other individual is not entitled to be indemnified for such
expenses.
SECTION 3. RIGHTS NOT EXCLUSIVE. The rights to indemnification
and reimbursement or advancement of expenses provided by, or granted pursuant
to, this Article VI shall not be deemed exclusive of any other rights to which
an individual seeking indemnification or reimbursement or advancement of
expenses may have or hereafter be entitled under any statute, the Certificate of
Incorporation, these By-laws, any agreement, any vote of stockholders or
disinterested directors or otherwise, both as to action in his or her official
capacity and as to action in another capacity while holding such office.
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SECTION 4. CONTINUING RIGHTS. The rights to indemnification and
reimbursement or advancement of expenses by, or granted pursuant to, this
Article VI shall continue as to an individual who has ceased to be a director or
officer (or other individual indemnified hereunder), shall inure to the benefit
of the executors, administrators, legatees and distributees of such individual,
and in either case, shall inure whether or not the claim asserted is based on
matters which antedate the adoption of this Article VI.
SECTION 5. INSURANCE. The corporation shall have power to
purchase and maintain insurance on behalf of any individual who is or was a
director, officer, employee or agent of the corporation, or is or was serving at
the request of the corporation, as a director, officer, employee or agent of an
Other Entity, against any liability asserted against such individual and
incurred by such individual in any such capacity, or arising out of such
individual's status as such, whether or not the corporation would have the power
to indemnify such individual against such liability under the provisions of the
Certificate of Incorporation, these By-laws or under Section 145 of the Delaware
General Corporation Law or any other provision of law.
SECTION 6. CONTRACT RIGHTS; NO REPEAL. The provisions of this
Article VI shall be a contract between the corporation, on the one hand, and
each director and officer who serves in such capacity at any time while this
Article VI is in effect and any other individual indemnified hereunder, on the
other hand, pursuant to which the corporation and each such director, officer,
or other individual intend to be legally bound. No repeal or modification of
this Article VI shall affect any rights or obligations with respect to any state
of facts then existing or, heretofore or thereafter brought or threatened based
in whole or in part upon any such state of facts.
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SECTION 7. ENFORCEABILITY; BURDEN OF PROOF. The rights of
indemnification and reimbursement or advancement of expenses provided by, or
granted pursuant to, this Article VI shall be enforceable by any individual
entitled to such indemnification or reimbursement or advancement of expenses in
any court of competent jurisdiction. The burden of proving that such
indemnification or reimbursement or advancement of expenses is inappropriate
shall be on the corporation. Neither the failure of the corporation (including
its Board of Directors, its independent legal counsel and its stockholders) to
have made a determination prior to the commencement of such action that such
indemnification or reimbursement or advancement of expenses is proper in the
circumstances nor an actual determination by the corporation (including its
Board of Directors, its independent legal counsel and its stockholders) that
such individual is not entitled to such indemnification or reimbursement or
advancement of expenses shall constitute a defense to the action or create a
presumption that such individual is not so entitled. Such an individual shall
also be indemnified for any expenses incurred in connection with successfully
establishing his or her right to such indemnification or reimbursement or
advancement of expenses, in whole or in part, in any such Proceeding.
SECTION 8. SERVICE AT THE REQUEST OF THE CORPORATION. Any
director or officer of the corporation serving in any capacity in (a) another
corporation of which a majority of the shares entitled to vote in the election
of its directors is held, directly or indirectly, by the corporation or (b) any
employee benefit plan of the corporation or any corporation referred to in
clause (a) shall be deemed to be doing so at the request of the corporation.
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SECTION 9. RIGHT TO BE COVERED BY APPLICABLE LAW. Any individual
entitled to be indemnified or to reimbursement or advancement of expenses as a
matter of right pursuant to this Article VI may elect to have the right to
indemnification or reimbursement or advancement of expenses interpreted on the
basis of the applicable law in effect at the time of the occurrence of the event
or events giving rise to the applicable Proceeding, to the extent permitted by
law, or on the basis of the applicable law in effect at the time such
indemnification or reimbursement or advancement of expenses is sought. Such
election shall be made, by a notice in writing to the corporation, at the time
indemnification or advancement of expenses is sought; provided, however, that if
no such notice is given, the right to indemnification or reimbursement or
advancement of expenses shall be determined by the law in effect at the time
indemnification or reimbursement or advancement of expenses of sought.
ARTICLE VII
AMENDMENTS
These By-Laws may be altered or repealed and By-Laws may be made
at any annual meeting of the stockholders or at any special meeting thereof if
notice of the proposed alteration or repeal or By-Law or By-Laws to be made be
contained in the notice of such special meeting, by the affirmative vote of a
majority of the stock issued and outstanding and entitled to vote thereat, or by
the affirmative vote of a majority of the Board of Directors, at any regular
meeting of the Board of Directors, or at any special meeting of the Board of
Directors, if notice of the proposed alteration or repeal, or By-Law or By-Laws
to be made, be contained in the notice of such special meeting.
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